Liablilties Flashcards
Accessory after the fact section 71
Elements
– Anyone (the accessory)
– knowing another person to have been a party to an offence
– receives, comforts, or assist that person
OR
Tampers with or actively suppresses any evidence against him or her
– in order to enable him to avoid arrest, escape or avoid conviction
Knowing
Simister and Brookbanks
– knowing or correctly believing
the belief must be a correct one, where the belief is wrong a person cannot know something
R V Crooks - Knowledge
Actual knowledge or belief, having no real doubt that the person assisted was a party to the offence. Suspicion is insufficient
R V Briggs - Wilful blindness
Knowledge may be inferred (like receiving) from wilful blindness or deliberate abstention from making inquiries that would confirm the suspected truth
A person is considered wilfully blind if
– the person deliberately shut their eyes or fails to enquire, this is because they know what the answer would be or in situations where the means of knowledge are easily at hand and the person realises the likely truth of the matter but refrains from enquiring in order to know
R V Mane - Offence must be complete
To be considered an accessory the acts done by the person must be after the completion of the offence
Receives
Harbouring in offender or offering them shelter can be considered receiving
Comforting
Situations where an accessory provides an offender with things such as food and clothing
Assists
Covers a number of situations,
providing transport,
acting as a lockout,
ID someone willing to purchase stolen property,
giving authorities false information,
giving advice information, material or services
Tempers with or actively suppresses evidence
Washing clothing, burning evidence, cover up by false statement
Intention of an accessory
Avoid arrest
Escape arrest
Avoid conviction
Intent – R V Collister
Intent may be inferred by
– offenders actions or words before, during or after the event
– the surrounding circumstances and the nature of the act itself
Conspiracy 310(1)
– Conspires
– with any person
– to commit an offence
Conspires
Two or more people forming an agreement to do an unlawful act, or to do a lawful act by unlawful means
The actus reus of conspiracy is the actual agreement by two or more people to carry out the illegal conduct
The offenders mental element must be to commit the full offence
The offence is complete on the agreement being made with the required intent
A person withdrawing from the agreement is still guilty of conspiracy as are those people who become party to the agreement after it has been made
Mulcahy V R
A conspiracy consists not merely of an intention of two or more but in the agreement of two or more to do an unlawful act or to do a lawful act by unlawful means
R V Sanders
A conspiracy does not end with the making of the agreement. The conspiratorial agreement continues in operation and therefore in existence until it is ended by completion of its performance or abandonment
Conspiracy - with any person
A person cannot conspire alone there must be another conspirator for the offence to be committed
R V white
Can still convict we you can prove that I suspect conspired with other parties – one or more people – whose identities are unknown
To commit an offence – conspiracy
May be described as any act or omission that is punishable on conviction under any enactment
Perjury – section 108
– A witness making any
– Assertion and as to any matter of fact, opinion, belief or knowledge
– in any judicial proceeding
– forming part of that witnesses evidence on oath
– known by that witness to be false and
– intended to mislead the tribunal
Witness
A person who gives evidence and is able to be cross-examined and are proceeding
Includes a person actively engaged and giving evidence, someone who was previously given evidence and a person who will give evidence
Assertion
Something declared or stated positively, often with no support or attempt made at furnishing evidence or proof of the assertion accuracy
Matter of fact
Particular kind of information. A fact is a thing done, an actual occurrence or event and it is presented during court proceedings in the form of witness testimony and evidence
Opinion
A statement of opinion that tends to prove or disprove affect. Only admissible of section 24 of the evidence act applies
A witness may state an opinion on evidence in a proceeding if that opinion is necessary to enable the witness to communicate or fact finder to understand
Belief
Is essentially a subjective feeling regarding the validity of an idea or set of facts. Having faith in an idea or formulating and conclusion
Knowledge
The belief must be a correct one, where the belief is wrong a person cannot know something. Free from doubt
Any judicial proceeding
Giving evidence in a proceeding by way of audiovisual link from another country is still perjury in New Zealand
Oath
Declaration before a person which invokes some religious belief and says that a thing is true or right
Affirmation
Verbal or written declaration saying that a thing is true or right without reference to religious belief
Declaration
A witness under 12 years old may make a declaration which is a promise to tell the truth
Known by that witness to be false
The accused knows the statement to be false
Corroboration is required – there must be corroboration in relation to perjury as per section 121(1)(a)
Intended to mislead - perjury is complete
The offence of perjury is complete at the time the false evidence is given accompanied by an intention to mislead the tribunal
There is no defence where the witness later recants and informs the tribunal of the falsity of the earlier evidence
Receiving – section 246(1)
– Receives
– any stolen property or property obtained by any other impressionable offence
– knowing that at the time of receiving the property that it had been stolen
Or being reckless as to whether the property had been stolen or so obtained
Stolen property/obtained by impressionable offence
Defendant has received the property which required that the receiving must be from another
Received with knowledge that it had been stolen or are legally obtained or reckless as to that possibility
Act is complete as soon as the offender either obtained possession or control over or helps in its concealing or disposing of the property
R v cox
To elements. Physical is actual or potential custody and control mental as knowledge and intention. Knowledge of position intention to exercise position
R V Cullen
– Awareness that the item is where it is
– awareness that the item has been stolen
– actual or potential control of the item and
– an intention to exercise that control over time
R v Donnelly
The offence must be legally possible
We are stolen property has been returned to its owner or legal title acquired by any person,
it is not an offence to subsequently receive it, even though the receiver may know that the property had been previously stolen or dishonestly obtained
Property
Any real personal property in the estate or interest in any real personal property
Theft / stealing
Theft is committed by a taking when the offender moves the property or causes it to be moved
Obtained by any other impressionable offence
Obtained by deception, money obtained from sale of drugs – obtained by any other impressionable offence
r v Lucinsky
The property received must be the property stolen or illegally obtained or part of and Not some other item for which the illegally obtained property had been exchanged or which are the proceeds
R V Kennedy - Guilty knowledge
That the thing had been stolen or dishonestly obtained must exist at the time of receiving
R V Cameron - Recklessness
Recklessness as to whether deliberately took in a justified risk
The defendant recognises that the possibility that
– actions would bring about a prescribed result
– circumstances existed
– and having regard for those risks the actions were unreasonable
